Osborn v. Borchetta
| Citation | 20 Conn.Supp. 163,129 A.2d 238 |
| Decision Date | 18 December 1956 |
| Docket Number | No. 100386,100386 |
| Court | Superior Court of Connecticut |
| Parties | Ernestine OSBORN, Individually and as Administratrix, v. Patsy A. BORCHETTA et al. |
Keogh & Candee, Norwalk, for plaintiff.
Maher & Maher, Bridgeport, and Silverberg & Silverberg, New Canaan, for defendants.
The question before the court on this demurrer to the complaint is whether or not the Dram Shop Act of New York gives rise to a cause of action in Connecticut where the sale of liquor and the intoxication occur in New York and the accident arising as a result thereof occurs in Connecticut.
The amendment to the complaint recites two New York statutes: Section 65 of the Alcoholic Beverage Control Law, McK. Consol. Laws, c. 3-B, makes it a criminal act to sell intoxicating beverages to an intoxicated person. Section 16 of the Civil Rights Law, McK. Consol. Laws, c. 6, provides that any person injured by an intoxicated person or by reason of the intoxication of any person, whether death results or not, shall have a right of action against any person who shall, by unlawfully selling liquor to such intoxicated person, have caused or contributed to said intoxication.
Further allegations are that the defendants sold intoxicating liquor in their inn in New York state to one Hughes, who became intoxicated, and continued to make further sales to him while he was intoxicated, in violation of the Alcoholic Beverage Control Law of New York; that as a result of his intoxication Hughes thereafter operated his car in a wanton and reckless manner in Connecticut and collided with a truck; and that the plaintiff's intestate, a passenger in Hughes's car, sustained injuries in the accident from which he died. A companion suit, No. 100,494, was brought by another passenger, and a similar demurrer was filed in that suit.
The first ground of demurrer is that the action is predicated upon a violation of the New York statutes, which do not have extraterritorial effect. Subject to certain recognized exceptions, a party can enforce in our courts any legal right of action which he may have, whether it arises under our own law or that of another jurisdiction. Vanbuskirk v. Hartford Fire Ins. Co., 14 Conn. 583, 591; Reilly v. Antonio Pepe Co., 108 Conn. 436, 445, 143 A. 568. Generally speaking, we do not enforce statutes which are penal or rights arising thereunder. Nor do we enforce the laws of another jurisdiction, or the rights arising thereunder, which we conceive to be injurious to our public rights or to the interests of our citizens, nor those which offend our morals, contravene our public policy or violate our positive laws. Reilly v. Antonio Pepe Co., supra; Cristilly v. Warner, 87 Conn. 461, 463, 88 A. 711, 51 L.R.A.,N.S., 415. The New York statutes under which this action is brought do not fall within any of these exceptions. Clearly, they are not injurious to our public rights, and they do not violate our positive laws or offend our morals. The dissimilarities between the Dram Shop Act of New York and that in our own state are not sufficient to constitute an enforcement of rights arising under the former a contravention of our public policy. Reilly v. Antonio Pepe Co., 108 Conn. 436, 446, 143 A. 568.
In determining whether the New York Dram Shop Act is penal to the extent that rights arising under it cannot be enforced in the courts of Connecticut, certain general considerations should be borne in mind. In this state we take a broad view of the extent to which our courts should go in the enforcement of individual rights arising under the statutes of another state. Lapinski v. Copacino, 131 Conn. 119, 124, 38 A.2d 592, and cases cited. When the immediate redress to be afforded is to the individual, many of the reasons which stand in the way of enforcing strictly penal statutes are inapplicable. Ibid.; see concurring opinion of Judge Learned Hand in Moore v. Mitchell, 2 Cir., 30 F.2d 600, 604, 65 A.L.R. 1354. It has been said that a dram shop act is a statute of highly penal character. Cruse v. Aden, 127 Ill. 231, 239, 20 N.E. 73, 3 L.R.A. 327; see 48 C.J.S., Intoxicating Liquors, § 431, p. 717. Even so, it remains to consider whether the law in question is of such a character as to be unenforceable in our state.
Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state. Huntington v. Attrill, 146 U.S. 657, 667, 13 S.Ct. 224, 36 L.Ed. 1123. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal. Ibid. In that case, the majority...
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